CHAPTER 4FREEDOM OF SPEECH AND HUMANRIGHTS ISSUE IN INTERNET

Internet and Cyber Space has thrown open the debate on Freedom of Speech and Human
Rights issue in a different dimension than those debates existing in the physical world
prior to the net revolution. Internet today in essence poses challenges to the settled issues
of what constitutes the limits of freedom of expression defined by the laws of the nations.
By virtue of its worldwide concept, the conflict of a universal code for freedom of
expression and the national concept of the limits of freedom are locked in horns. The
speed and reach of the net will redefine the information flow and its impact on various
issues of political, social and cultural impact. The debate on the regulation of such
freedom and rights in the net revolves not merely on the regulation by law but also the
dependence on technology related solutions to aid such regulation. The current
developments include that of the filters and label systems for selective regulation and
to minimize restriction of the net freedom.
The attempt to use these technological solutions is an attempt to solve the vexatious
question of keeping certain segments away from a world where it is free for all in terms
of age, space, culture and anonymity. Whether the technology will succeed and how far
effective is yet to be assessed but the efforts are continuing. These solutions are of two
kinds- the filters which are hardware devices to be used by local and national level
regulators on controlling the contents and the target audience. The second type of
solution is appropriate labeling in the content of the Net for regulation. The Platform for
Internet Content Selection developed by the Massachusetts Institute of Technology
through the World Wide Web consortium aids labeling by first and third party and has
been acknowledged and accepted as one fitting the industry standards. These labeling
systems used along with appropriate filtering hardware could be effective of regulating
the net for information which has to be kept away from select target groups like children
and may not impose a blanket ban on access to all. However the debate is on who will
decide about the issues, and how effective it will be ?.
Freedom of Expression in Internet
Freedom of expression and right to information has gained a universal recognition
and is part of the various international declarations and conventions. Thomas
Chocrane1 in his article Law of nations in Cyber Space lists out the important
declarations listed below:
1.Article 19 of the Universal Declaration of Human Rights states that "[e]veryone
has the right to freedom of opinion and expression; this right includes freedom to
hold opinions without interference and to seek, receive and impart information and
1

The Law of Nations in Cyberspace: Fashioning a Cause of Action for the Suppression of Human Rights
Reports on the Internet by Thomas Cochrane. See
<http://www.mttlr.org/html/volume_four.html/Cochrane.html>.

ideas through any media and regardless of frontiers."2 Article 19 of the

International Covenant on Civil and Political Rights contains a similar provision,
guaranteeing "the right to freedom of expression," including "freedom to seek,
receive and impart information and ideas of all kinds, regardless of frontiers . . .
through any . . . media . . .", though this right may be limited as necessary to protect
national security, public order, or public health or morals. 3
2.

The European Convention for the Protection of Human Rights and

Fundamental Freedoms, Article 10, and the American Convention on
Human Rights, Article 13, protect the freedom of expression with
provisions substantially similar to those contained in the Universal
Declaration and the ICCPR.4 The European Convention, however, states
that this right may be limited "in the interests of national security,... for
the prevention of disorder or crime,... for the protection of the reputation
or rights of others, for preventing the disclosure of information received
in confidence, or for maintaining the authority and impartiality of the
judiciary."5
3.
The American Convention also contains the caveat that the exercise of the
right to freedom of expression may be limited as necessary for "the
protection of national security, public order, or public health or morals."6
Despite these qualifying provisions in the various human rights
instruments, it is generally recognized that freedom of information is a
superior right, not in competition with an equivalent right
of the state to limit access to information for national security reasons.

4.

In the well-known case of Sunday Times v. United Kingdom, the

European Court of Human Rights explained that the decision maker in
human rights litigation "is faced not with a choice between two
conflicting principles but with a principle of freedom of expression that is
subject to a number of exceptions which must be narrowly interpreted."7

5.

All human rights regimes recognize a right to freedom of information or

expression, although the scope of that right varies considerably. Freedom
of information is probably least protected in the African Charter on

U.N. GENERAL ASSEMBLY, UNIVERSAL DECL. OF HUMAN RIGHTS, U.N. Doc. A/810, U.N.
Sales No. 152.1.15 (1948) [hereinafter UNIVERSAL DECL. OF HUMAN RIGHTS].
3
International Covenant on Civil and Political Rights, 1966 U.N. Jurid. Y.B. 178, U.N. Doc.
ST/LEG/SER.C/4.
4
European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 312
U.N.T.S. 221, E.T.S. 5, as amended by Protocol No. 3, E.T.S. 45, Protocol No. 5, E.T.S. 55, and Protocol
No. 8, E.T.S. 118, Article 10; American Convention on Human Rights, Nov. 22, 1969, 9 I.L.M. 673 (1970),
Article 13.
5
European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 312
U.N.T.S. 221, E.T.S. 5, as amended by Protocol No. 3, E.T.S. 45, Protocol No. 5, E.T.S. 55, and Protocol
No. 8, E.T.S. 118, Article 10.
6
American Convention on Human Rights, Nov. 22, 1969, 9 I.L.M. 673 (1970), Article 13
7
Sunday Times v. United Kingdom, 30 Eur. Ct. H.R. (ser. A) at 41 (1979). See also Observer and Guardian
v. United Kingdom, 216 Eur. Ct. H.R. (ser. A) at 20 (1991)

Human and Peoples' Rights, which was adopted by Organization of

African Unity in 1963, and has been adopted by virtually every African
nation.8
6.

Article 9 of the Charter protects freedom of information, declaring that

"[e]very individual shall have the right to receive information" and that
"[e]very individual shall have the right to express and disseminate his
opinions within the law."9 The African Charter is distinctive in that it
proclaims duties as well as rights,10 and these limitations could arguably
limit the freedoms guaranteed in Article 9.

7.

The African Charter, like the International Covenant on Civil and

Political Rights, declares that individuals have responsibilities to their
communities, but the Charter "is the first human rights treaty to include
an enumeration of, to give forceful attention to, individual's duties." The
duties of individuals are outlined in Articles 27, 28, and 29 of the African
Charter, and Article 29 is particularly broad in reach.11 Phrases such as
"serve the national community," "not to compromise the security of the
state," and "strengthen social and national solidarity" sound suspiciously
like grounds on which a nation could seek to justify severe limitations on
the right to freedom of information.

Human and People's Rights in Africa and The African Charter, Report of a Conference held in Nairobi
from 2 to 4 December 1985
convened by the International Commission of Jurists, 93-94.
9
African Charter on Human and People's Rights (Banjul Charter), June 27, 1981, 21 I.L.M. 59 (1981), art.
9.
10
ee Burns Weston et al., Regional Human Rights Regimes: A Comparison and Appraisal, 20 Vand. J.
Transnat'l L. 585, 608-14 (1987); Lees Flinterman & Evelyn Ankumah, The African Charter on Human and
Peoples' Rights, in GUIDE TO INTERNATIONAL HUMAN RIGHTS PRACTICE 165-66 (H. Hannum
2d ed., 1992).
11

Article 27. 1. Every individual shall have duties towards his family and society, the State and other
legally recognised communities and the international community. 2. The rights and freedoms of each
individual shall be exercised with due regard to the rights of others, collective security, morality, and
common interest. Article 28. Every individual shall have the duty to respect and consider his fellow beings
without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual
respect and tolerance. Article 29. The individual shall also have the duty: 1. To preserve the harmonious
development of the family and to work for the cohesion and respect of the family; to respect his parents at
all times, to maintain them in case of need; 2. To serve this national community by placing his physical and
intellectual abilities at its service; 3. Not to compromise the security of the State whose national or resident
he is; 4. To preserve and strengthen social and national solidarity, particularly when the latter is threatened;
5. To preserve and strengthen the national independence and the territorial integrity of his country and to
contribute to its defense in accordance with the law; . . . 8. To contribute to the best of his abilities, at all
times and at all levels, to the promotion and achievement of African Unity. African Charter on Human and
People's Rights (Banjul Charter), June 27, 1981, 21 I.L.M. 59 (1981), arts. 27-29.

Indian Position
This assurance of protection to free thought and speech has been provided in more
explicit terms under Article 19 (1) of the Constitution. It says:
19. Protection of certain rights regarding freedom of speech, etc.
(1) All citizens shall have the right(a) to freedom of speech and expression
(b) to assemble peaceably and without arms
(c) to form associations or unions;
(d) to move freely throughout the territory of India,
(e) to reside and settle in any part of the territory of India, and
(f) (it is omitted by the Constitution (Forty Fourth Amendment) Act, 1978, s. 8)
(g) to practise any profession, or to carry on any occupation, trade or business.
(2) Nothing in sub clause (a) of clause (1) shall effect the operation of any
existing law, or prevent the State from making any law, in so far as such law
imposed reasonable restrictions on the exercise of the right conferred by the said
sub-clause in the interests of sovereignty and integrity of India, the security of
state, friendly relations with foreign States, public order, decency or morality, or
in relation to contempt of court, defamation or incitement to an offence.
Article 19(2) was amended in 1951 and the State was allowed to make laws with
the object of imposing reasonable restrictions on the exercise of the right conferred by
Article 19(1)(a) in the interests of
1.
2.
3.
4.
5.
6.
7.
8.

Security of State,
Friendly relations with foreign states,
Public order,
Decency or morality
In relation to Contempt of court
Defamation
Incitement to an offence.
Sovereignty and integrity of India ( This ground is added in Article 19(2) by
Constitution (Sixteenth Amendment) Act, 1963)

Public Order & Security of State:12

If an act has tendency to cause public disorder it would be valid ground under
Article 19(2) to impose restrictions, even though it may not lead to breach of public
order.

12

The following excerpts are taken from Media and Public Policy Dr.Sridhar Acharyalu, Nalsarpro,p 7180.

Supreme Court explained the meaning of the public order as that state of
tranquility, which prevails amongst the members of a political society as a result of the
internal regulations, enforced by the Government, which they have established13. The
expression security of state refers to serious and aggravated form of public disorder and
not ordinary law and order problem and public safety. The speeches and expressions,
which encourage violent crimes, are related to security of State14.
Official Secrets:
Mere criticism of the Government action would not fall within the mischief of
public order and the same would be protected under Article 19(1)(a). The Supreme
Court said referring to Section 124A of the IPC held that the activity would be rendered
penal when it is intended to create disorder.15 In the name of security, the Official Secrets
Act of 1923 is still imposing severe restrictions on the freedom of expression. However,
the governments in principle accepted to reduce the seriousness of this colonial
legislation and provide for Right to Freedom of Information. The Official Secrets Act
poses a major impediment in the process of providing right to information.
Incitement to an Offence:
The fundamental right of freedom of speech and expression ends when such
incites the commission of violent crimes, which include attempts to insult the religious
beliefs of any class. The aggravated forms of insult to religion which may clearly
intended to disrupt public order are reasonable grounds based on which restrictions can
be imposed on freedom of speech and expression. Promotion of disharmony among the
classes during an election speech also can be restricted on the same ground. Seeking
votes on the ground of candidates religious in a secular state is against the norms of
decency and propriety of the society16. Thus Section 123(3) of Representation of People
Act 1951 which imposes restriction on the exercise of right under Article 19(1) (a) is
based on the support from Article 19(2) which include decency as a ground.
In Indulak K. Yagnik v. State of Maharashtra17 Section 3 of the Police
(Incitement to Disaffection) Act 1922 was challenged as contrary to the fundamental
right to freedom of expression. Bombay High Court held that the inducement of a police
officer is punishable and thus the restriction on the free expression to prevent incitement
to offences is valid under Article 19(2).
Similarly section 144 of Criminal Procedure Code which gives wide power to
District Magistrates to impose restriction upon the fundamental rights of freedom of
speech and assembly, is declared constitutional, in Babulal v. State of Maharasthra18
and State of Bihar v. K.K. Mishra19
13

Ramesh Thapper v. State of Madras AIR 1950 SC 124

State of Bihar v. ShailaBala AIR 1952 SC 329
15
Kedarnath v. State of Bihar AIR 1962 SC 955
16
R.Y .Prabhoo v. P.K. Kunte AIR 1996 SC 1113
17
AIR 1969 Bom 399
18
AIR 1961 SC 884
19
AIR 1971 SC 1667
14

Contempt of Court:
Contempt of Court has been recognised as a valid ground for imposing
restrictions on the freedom of speech and expression. The Supreme Court in C.K.
Dephtery v. D.P.Guptha20 held that the power of contempt administered by the Supreme
Court under Article 129 is reasonable under Article 19(2). Section 228 of Indian Penal
Code also makes the contempt of court punishable; Contempt of Courts Act 1952 also
punishes it.
When former Chief Minister of Kerala, E.M.S. Namboodripad made various
critical remarks against the judiciary at a press conference, he was questioned for
contempt of court. He argued that the statement was protected under Article 19(1)(a).
Rejecting the argument the Court held that while exercising the right of freedom of
expression one should not commit contempt of court, and any comment which could be
contempt is not protected by the Constitution.21
Supreme Court stated the object and content of this restriction in a recent case
Narmada Bachao Andolon 22 as follows: No person is permitted to distort orders of the
court and deliberately give a slant to its proceedings, which have the tendency to
scandalize the court or bring it to ridicule. Hypersensitivity and peevishness have no
place in judicial proceedings- vicious stultification and vulgar debunking cannot be
permitted to pollute the stream of justice.
However, the newspapers and media channels have right to publish reports on the
proceedings of the court, subject to the orders of the Court resolving the dispute. But if
the Court orders not to publish a particular evidence of a witness, that is not an invalid
order. Thus it cannot be said that press or TV channels have fundamental right to publish
the court proceedings.
Causing Contempt of Court is not part of the freedom of press. In fact,
contempt of court is a ground on which the press freedom can be restricted under
Article19 (2). A news item stating that two sons of senior judge of the Supreme
Court and two sons of the Chief Justice of India were favoured with the
allotments of petrol outlets from the discretionary quota by the Petroleum
Minister was published in some newspapers. The concerned Editors, Printers and
Publishers admitted that the news item was false and was published inadvertently
and without any malice to the judiciary. "The Sunday Tribune" in its issue dated
March 10, 1996 published an item with a caption "Pumps for all". A similar item
also was published in "Punjab Kesari". Contempt proceedings were taken up on
the petition of K.T.S.Tulasi, and Additional Solicitor General besides some senior
Advocates. Supreme Court held that the newspapers did not take even ordinary
20

AIR 1971 SC 1132

E.M.S. Namboodripad v. T.N. Nambiar AIR 1970 SC2015
22
AIR 1999 SC 3345
21

care to verify the truth of the allegations and did some disservice to the society by
disseminating false information affecting the credibility of newspapers and
causing embarrassment to the Supreme Court. The Court said that obviously this
could not be regarded as something done in good faith. However, the Supreme
Court accepted the apology tendered by the Journalists. The Court said: "he
(senior Journalist) has no doubt, committed serious mistake but he has realised his
mistake and expressed sincere repentance and has tendered unconditional apology
for the same. He was present in the Court and virtually looked to be gloomy and
felt repentant of what he had done. This sufferance in itself is sufficient
punishment for him. He being a senior journalist and an aged person and,
therefore, taking lenient view of the matter his apology was also accepted." The
Court directed the contemners to publish in front page of their respective
newspapers within a box their respective apologies specifically mentioning that
the said news items were absolutely incorrect and false.23 However, the Supreme
Court in this judgment, reiterated the importance of a vibrant free press in a
democracy in the following words.
Freedom of Press has always been regarded as an essential pre-requisite of a
Democratic form of Government. It has been regarded as a necessity for the
mental health and the well being of a society. It is also considered necessary for
the full development of the personality of the individual. It is said that without
the freedom of press truth cannot be attained. The Freedom of the Press is
regarded as "the mother of all other liberties" in a democratic society. A free and
healthy Press is indispensable to the functioning of a true democracy. In a
democratic set-up there has to be an active and intelligent participation of the
people in all spheres and affairs of their community as well as the State. It is their
right to be kept informed about current political, social, economic and cultural life
as well as burning topics and important issues of the day in order to enable them
to consider and form broad opinion about the same and the way in which they are
being managed, tackled and administered by the Government and its
functionaries.
Friendly Relations with Foreign States:
This is yet another ground justifying the restriction on the free speech. However
state cannot prevent all the criticism of the foreign policy of the Government. The press
should shun systematic diffusion of deliberately false or distorted reports, which
undermines the friendly relations with foreign States.
The state has general power to impose restrictions on the free speech and
expression provided such restrictions are reasonable. The standard of reasonableness has
t be with reference to the subject matter of legislation and the import and the purpose for
which such restrictions have been imposed and other prevailing circumstances.
Restriction should not be arbitrary and excessive. There should be a balance between the
freedom guaranteed and the community interests protection of which necessitated the
imposition of a restriction.
23

In Re: Harijai Singh and another, In Re: Vijay Kumar AIR 1997 Supreme Court 73

The Supreme Court held in Kharak Singh v State of Punjab24 that restriction
couldnt be imposed through an executive or departmental instructions. Reasonable
restriction can be imposed by law enacted by the legislature.

Censorship of Books:
Mr. Ranjit D. Udeshi, a partner of a firm which owned the Happy Book Stall in
Bombay was prosecuted and convicted under Section 292, Indian Penal Code for
possession of an obscene book Lady Chatterleys Lover, which was unexpurgated
edition. He appealed to Supreme Court, which upheld25 the conviction. The court said
that the opinions of literary or other experts were not relevant to the question of whether a
publication is obscene. The court adopted the test of obscenity laid down by the Chief
Justice Cockburn in Regina v Hicklin26, which is known as Hicklin test, where it was
observed:
The test of obscenity is this, whether the tendency of the matter charged as
obscenity is to deprave
and corrupt those whose minds are open to such
immoral influences, and into whose hands a publication of this sort may
fallit is quite certain that it would suggest to the minds of the young of
either sex, or even to persons of more advanced years, thoughts of a most
impure and libidinous character.
Defamation:
Defamation is an injury to reputation of a person. It is both a crime and a tort.
The law of civil defamation is not codified in India. However it provides for remedy
in case a persons reputation is harmed without any justifiable reason. The law of
criminal defamation is contained under Sections 499 and 500 of Indian Penal Code. If
a person intentionally indulges in harming the reputation of another, he can be
prosecuted for criminal wrong of defamation, which is a valid ground for imposing a
restriction on freedom of speech and expression, under Article 19(2).
When Harbhajan Singh made scathing attack on the son of the Chief Minsiter
Pratap Singh Kairon, he was prosecuted for defamation, in Harbhajan Singh v State
of Punjab, 27 the matter went up to Supreme Court. Mr. Singh accused the son of
Chief Minister as the leader of smugglers and responsible for several crimes in the
State. His conviction under defamation was set aside by the Supreme Court and
because his statement was intended for the public good, the appellant was entitled to
claim the protection of exception 9 to section 499 IPC.
Besides above restrictions, taxes and other trade related restrictions could be
imposed on the press like any other ordinary individual is subjected to. The freedom
24

AIR 1963 SC 1295

Rajit D. Udeshi v State of Maharasthra, AIR 1965 SC 881
26
[1968] 3 QB 360
27
AIR 1966 SC 97
25

of expression cannot protect a reporter or media person from being prosecuted for
infringing the privileges of Parliament, which were guaranteed by a special provision
Article 194(3) in the Constitution. However, there are restrictions possible on the
exercise of such parliamentary privileges. If such an exercise of privilege violates the
fundamental right to life and liberty without any legal basis and legal procedure, the
Judiciary reserves the power to review such an assault.
The Supreme Court has set an agenda for development of law on the press
freedom in Auto Shankar28 case. It laid down certain foundations for making new
principles of law on this subject at an appropriate time in future. It was in fact
waiting for a right to case to arrive to study the impact of Article 19(1)(a) on the
provisions of criminal defamation in Indian Penal Code, i.e., Sections 499 and
500. In principle the Supreme Court welcomed the wider interpretation of press
freedom in New York Times rule29 of US Supreme Court and Derbyshire30 case in
England. These judgments enhanced the scope of commenting on the public
conduct of the public officials and reduced the scope of individuals occupying the
public positions using the public office and public money for pursuing the actions
for damages in defamation. While effectively providing for an individual civil
remedy for defamation in favour of individuals there is need to review the
continuance of the criminal defamation in present form.
Another gray area of development for law is the broadcast media. After
holding that the state had no monopoly over the airwaves31, the necessity to make
statutes to regulate the electronic media by relieving it from the shackles of
government control. Exercise of press freedom in a vibrant democracy and its
interpretation by active judiciary is a continuous process. New principles will
evolve over a period of time in tune with the developing trends and needs of the
democracy.
As the freedom of expression is vehemently being exercised by the media,
especially electronic media, by arranging the meeting of the important
personalities from different walks of life over a teleconference or video
conference or on line conferences, and moving abroad for news coverage, the
other rights under Article 19 are also essential to exercise the right guaranteed
under Article 19(1)(a). The other rights are freedom of assembly, freedom of
association, freedom of movement, right to property and freedom of trade and
business.
Though the IT ACT has not specifically covered these issues, in Indian context 19(1)
(a) and relevant restrictions will apply in the content of Internet.

28

Supra note 6
Supra note 8
30
Supra note 7
31
Supra note10
29